Psych: The Amazing Psych-Man & Tap Man, Issue #2

Psych is a great TV show, but we haven’t had a good chance to talk about it because the bad guys are regular crooks and the main character isn’t actually psychic.  But the plot of this week’s episode—like a recent episode of Castle—pushed things into our territory by introducing a “real-life superhero” into the mix.  Significant spoilers ahead!

Psych‘s real-life superhero calls himself The Mantis, and basically operates like Batman.  He uses martial arts skills to take out criminals without using lethal force.  Since he goes after drug dealers, leaving the criminals tied up at the scene with the incriminating evidence (and their fingerprints all over it) may even be sufficient to get them convicted despite the Mantis being unavailable to testify.  And this is a good thing, since if any of the people the Mantis attacked weren’t breaking the law then he would be facing charges of false arrest and assault.

On its face this sounds pretty good—and he certainly has admirers in the Santa Barbara Police Department—but is he breaking any laws?  Three possible issues jump out at us: trespass, the use of force, and arrest formalities.

I. Trespassing

The drug deals that the Mantis disrupts are done on private property.  Does the fact that the Mantis has reason to believe that felonies are being committed there excuse his trespass?  It’s possible, but it’s a hard one to justify.  On the tort side, it’s not really a private emergency, as the Mantis has no personal need to trespass.

On the criminal side, the defense of necessity may not fit.  In California, the defense of necessity is very limited.  The defendant must show “that he violated the law (1) to prevent a significant and imminent evil, (2) with no reasonable legal alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief that the criminal act was necessary to prevent the greater harm, (5) with such belief being objectively reasonable, and (6) under circumstances in which he did not substantially contribute to the emergency.”  People v. Verlinde, 100 Cal.App.4th 1146, 1164-65 (2002).  At the very least it could be argued that the Mantis should have called the police first and only intervened if it appeared that the drug dealers were about to leave the scene.  The “objectively reasonable” part of the test is also problematic.  The Mantis would have to convince a jury that any reasonable person would have done what he did, not just that he thought it was reasonable.  That’s a tall order.

There is another possibility: the exigent circumstances doctrine.  Normally, exigent circumstances are an exception to the Fourth Amendment requirement that the police get a warrant before entering a home or other property.  It isn’t clear to us whether the doctrine can excuse trespass by a private citizen about to make a citizen’s arrest in California, but at least one other state (Texas), has held that it applies to private citizens the same as police: “A private person can do what a police officer standing in his shoes can legitimately do, but cannot do what a police officer cannot do.” Miles v. State, 241 S.W.3d 28, 39 (Tex. Ct. Crim. App. 2007).  This would still require a showing that the drug dealers were likely to flee or destroy evidence, but that’s not too high of a burden compared to necessity.

II. The Use of Force

The Mantis often uses stealth to sneak up on a criminal and knock him out.  Is this a justified use of force?  Since he acts first, it’s clearly not self-defense, but as a private citizen he is entitled to use reasonable force to effect an arrest or prevent a crime.  People v. Fosselman, 33 Cal.3d 572, 579 (1983) (en banc); Cal. Penal Code § 692.  Given that the criminals are armed and actively engaged in a crime while the Mantis is unarmed, it’s arguable that striking first and without warning is reasonable under the circumstances.

III. Arrest Formalities

Ordinarily, California law requires that “The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it.”  Cal. Penal Code § 841.  But there is an exception: “except when the person making the arrest has reasonable cause to believe that the person to be arrested is actually engaged in the commission of or an attempt to commit an offense.”  Id.  We could call this the “I’m pretty sure you know why I’m arresting you” exception.

Finally, “A private person who has arrested another for the commission of a public offense must, without unnecessary delay, … deliver him or her to a peace officer.”  Cal. Penal Code § 847(a).  The Mantis meets this requirement as well, since he alerts the police whenever he makes a bust (or at least they show up promptly enough that he doesn’t need to).

IV. Conclusion

The Mantis’s modus operandi more or less comports with the law, so it makes sense that the police didn’t try too hard to stop him, at least until he (wrongly) became a murder suspect.

(One last thing to mention: the Mantis stealing the drug dealers’ money was, indeed, a crime because the money was still the drug dealers’ property, at least until the state seizes it as proceeds of a crime.)

10 responses to “Psych: The Amazing Psych-Man & Tap Man, Issue #2

  1. People hire Psych as an investigator. If Psych were proven to not be psychic could somebody sue him for false claims? If Psych were to fail to deliver and somebody were to sue Psych would they have to show that Psych wasn’t psychic or would Psych have to show that he was psychic? Is the onus of proof always on the person filing the suit or it is not the person making the more extraordinary claim?

    • I don’t watch the show, but I imagine the best way around that would be to make it clear or arguable in his ad copy that he does not claim to have literal psychic powers, but rather, claims to be “like a psychic” or “with psychic-like acuity.” He could also possibly claim that he used “psychic” in the sense of “referring to the psyche,” i.e. the intellectual powers, but that one might or might not hold water; I believe it was a more general term in the first half of the 20th century.

    • Just to clarify, the character is called Shawn Spencer, not “Psych.” “Psych” is the name of his detective agency — and is also a clue that his alleged psychic powers aren’t genuine. The sign outside his office is literally saying “Psych!” as in “Fooled you!” Which he might be able to use in his defense if he were sued for fraud, since he could claim he was telling people up front not to take his claims too literally.

    • Well, that depends on the claims he made and the disclaimers he might make. For example, “I will use my best efforts to solve your case, but I cannot guarantee results, including the successful use of psychic powers.” Now, we don’t see that on the show, but it’s reasonable for the show to omit the boring contractual details (it generally omits discussions of the fee).

      Under the parol evidence rule, the terms of the written contract would supersede and exclude any other terms, warranties, or claims. So a written contract would likely protect Shawn and Gus from a claim that the “Psychic Detective” sign implies that they will use psychic powers to solve the case.

      • Martin Phipps


      • I know this entry is a few months old, but I had a question about how this might affect his work with the police.

        If it was somehow proven that Shawn was a fraud, could all the convictions he helped secure be called into question and possibly overturned?

        Even though the police generally back up his hunches, is evidence initially collected by a psychic detective even admissible in court?

      • If it was somehow proven that Shawn was a fraud, could all the convictions he helped secure be called into question and possibly overturned? Even though the police generally back up his hunches, is evidence initially collected by a psychic detective even admissible in court?

        There are two main ways that evidence could be excluded. First, any warrants issued on the basis of psychic evidence could be quashed for lack of probable cause. This is independent of whether Shawn is a fraud or not, actually.

        Second, since Shawn works so closely with the SBPD, often as a paid consultant, he is very likely a state actor for Fourth Amendment purposes. That means that evidence collected by Shawn in violation of the Fourth Amendment could trigger the exclusionary rule and the fruit of the poisonous tree doctrine. So if it’s revealed that Shawn actually got his evidence through an illegal warrantless search, that could lead to pretty much the whole case getting thrown out and the conviction being overturned.

        But in cases where warrants were obtained independent of Shawn’s psychic hunches and Shawn did not engage in any illegal searches, then it would be much harder to challenge the admission of evidence or a conviction just because a psychic, even a fraudulent one, was involved.

      • Thanks for the reply. Just out of curiosity, do you know offhand of any murders or serious crimes where a supposed psychic helped authorities solve a case? How would the courts even handle that?

        It seems like a good defense attorney could call the “psychic” to the stand and tear them apart.

  2. Martin’s comment reminds me of an incident from the Wild Cards universe, a book series about superpowers in a somewhat realistic setting. During a “red scare” against those suspected of carrying the super-virus, one of the accused asks rhetorically “So how do you prove that you CAN’T fly?”

  3. On the issue of Shawn being a “fraudulent” psychic, I’d argue that he isn’t, at least not in a way that’s relevant to his cases. He’s not falsifying the evidence he gathers; he’s a very keen, Sherlock Holmes-level observer, able to notice subtle details and patterns that others miss, so the evidence he unearths is real. The only thing he misrepresents is how he got the information. He initially put on the psychic act when his insights into a crime made him a suspect, and explaining his actual subtle skill was too difficult or unconvincing, so claiming psychic powers was his only out. And then he had to keep up the pretense to avoid getting charged with lying to the cops, or something.

    I suppose if he had to testify under oath about how he noticed a key piece of evidence, he’d have to come clean about his observation skills, and he could call his father as a corroborating witness. That would ruin the premise of the show, so they wouldn’t go there, but in a realistic situation maybe he’d strike a deal for immunity on defrauding the cops in exchange for his testimony to convict the killer.

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